High Court of Ireland Decisions

Neutral Citation: [2015] IEHC 339

1.2. Some of those grounds relate to the conditions of detention in which, it is alleged, Mr. Damache will be held if he is extradited to the U.S.A.. Others cover the sentencing procedure under U.S. Federal Sentencing Guidelines (“the Sentencing Guidelines”), the plea bargaining system and the nature and length of the sentence he is bound to receive. A particular issue, unique to extradition law, called the rule of speciality is also raised. Further issues, also unique to extradition law such as double criminality or correspondence of offences, must be established if extradition is to be permitted.

1.3. In separate proceedings, Mr. Damache seeks to review the decision of the Director of Public Prosecutions (“the DPP”) not to prosecute him in this jurisdiction arising from the factual allegations underpinning the extradition request. In particular, he wants to know the reasons for the DPP’s decision.

1.4. A third set of proceedings is also before the Court. In these proceedings, Mr. Damache seeks to review the failure of the DPP to reconsider or review her decision not to prosecute him. That reconsideration had been sought by Mr. Damache in light of the change of circumstances, namely that subsequent to the initial decision not to charge him, he was arrested on the extradition request by the U.S.A.. Mr. Damache has an interest in being prosecuted in this jurisdiction, because, regardless of the outcome if he were to be so prosecuted, he could not be extradited to the U.S.A..

1.5. Counsel for the Attorney General, who also represented the DPP and the Minister for Justice and Equality in the judicial review proceedings, told the Court that the State parties wished to have all three sets of proceedings dealt with by the Court. In other words, even if the case could be disposed of on by a ruling on certain grounds, it was in the interests of the administration of justice that a judgment covering all relevant issues be given. Certainly, from the point of view of the parties, it may be better to have a High Court decision on each relevant issue which can then form the basis of a complete appeal by either side should they wish to so appeal. For the sake of convenience, the Attorney General, and where appropriate the DPP and the Minister for Justice and Equality (“the Minister”), will be referred to as the State in these proceedings except where necessary to distinguish between each of those parties.

1.6. This judgment will cover the following matters in the following order:-

“Count 1: Conspiracy to provide material support to terrorists, in violation of Title 18, United States Code, Section 2339A, and carrying a maximum penalty of 15 years’ imprisonment and

1.7.3. In synopsis, the facts alleged against Mr. Damache, as set out in the extradition request and supporting documentation, indicate that in early 2009, Mr. Damache met Ms. Colleen LaRose online. It is alleged that Mr. Damache told Ms. LaRose, a U.S. citizen then residing in Pennsylvania, that he was a devoted jihadist living in Ireland and that he wanted to travel to Pakistan to fight against U.S. and allied troops. Soon thereafter, Mr. Damache, Ms. LaRose, and others developed plans to form a European terror cell. The plan called for a small group to travel from Europe to an Al-Qaeda training camp in Pakistan to get training in military tactics and explosives. After the completion of training, “the Damache led group” was to return to Europe and support attacks on targets that were to include U.S. and Western European citizens. In August 2009, Ms. LaRose travelled to the Netherlands, journeying eventually to join Mr. Damache in Ireland to assist in his effort. Through electronic communications, Mr. Damache coordinated Ms. LaRose’s departure from the U.S.A. and arrival, transportation and accommodation in Amsterdam. In Amsterdam, Mr. Damache provided Ms. LaRose with spiritual guidance and planned her move from Amsterdam to Ireland to join his group. Ms. LaRose later flew to Ireland and moved in with Mr. Damache and his new wife.

1.7.4. Ms. LaRose returned to the U.S.A. on 15th October, 2009, and was arrested based on a warrant issued on 10th October, 2009. In an interview following her arrest, it is alleged that Ms. LaRose admitted that she had travelled overseas with the intent to join Mr. Damache and commit violent attacks on U.S. and European citizens, that she was involved in a plot to kill Swedish artist, Mr. Lars Vilks (“Mr. Vilks”), a cartoonist who had drawn depictions of Muhammad, that she tried to raise funds for Al-Qaeda and that she had intentionally misled investigators by providing false information on two occasions in order to further the conspiracy.

2. The Required Formal Proofs for Extradition
2.1. Section 29(1) of the Extradition Act 1965, as amended, (“the Act of 1965”) sets out the duties of the High Court where a person is before the Court under the provisions of either section 26 or section 27 of the said Act of 1965. A person can only come before the Court where a warrant for arrest has been issued by a judge of the High Court under s. 26 or under s. 27. Such a warrant may only issue under s. 26 after the Minister has certified that the request for extradition has been made. Section 27 allows for the provisional arrest of a person where no such certificate has issued provided there is urgency in the request and particular grounds are satisfied.

2.2. Under the provisions of s. 29(1), the High Court shall make an order committing a person to custody to await the order of the Minister for his or her extradition, where it is satisfied that:-

“(a) the extradition of that person has been duly requested, and

(b) this Part applies in relation to the requesting country, and

(c) extradition of the person claimed is not prohibited by [Part II of the Act of 1965] or by the relevant extradition provisions, and

(d) the documents required to support a request for extradition under section 25 have been produced.”

This Part of the judgment only deals with the formal proofs required for extradition. The potential prohibitions on extradition with which this case was concerned are individually addressed later in this judgment. In so far as Part II of the relevant extradition treaty may contain other potential prohibitions not directly addressed in this judgment, none have been established before me and the extradition of Mr. Damache is not thereby prohibited.

2.3.2. In those circumstances, I am satisfied that Mr. Damache is before the High Court under s. 26 of the Act of 1965.

2.4.2. On the 13th July, 1983, Ireland signed the Treaty on Extradition between this State and the U.S.A. at Washington D.C. (“the Washington Treaty”). On the 25th June, 2003, the U.S.A. and the European Union (“the EU”) entered into an agreement on extradition. Article 3.2 of that agreement anticipated that each state would modify their bilateral treaties. The terms of the EU/U.S. extradition agreement were approved by Dáil Éireann and Seanad Éireann on the 16th October, 2008. Ireland and the U.S.A. signed an instrument on the 14th July, 2005, as contemplated by the said Article 3.2. That instrument was approved by Dáil Éireann on the 21st October, 2008.

2.4.3. Under the terms of s. 8 of the Act of 1965 as it applied at the material time, it is stated at s. 8(1):-

“[w]here by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by order apply this Part in relation to that country.”

2.4.4. The government, by means of the Extradition Act 1965 (Application of Part II) Order 2000 (S.I. 474 of 2000), made an order pursuant to s. 81 of the Act of 1965 applying Part II of the Act to the U.S.A.. Notice of the making of the said order was published in Iris Oifigiúil on the 6th February, 2001. Part 9 of S.I. 474 of 2000 was subsequently amended, in order to give effect to the provisions of the EU/U.S. extradition agreement and the Instrument signed by Ireland and the U.S.A., by virtue of the Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 (S.I. 45 of 2010). Notice of the making of that order was published in Iris Oifigiúil on the 19th February, 2010. There was a brief amending S.I., namely S.I. 173 of 2002 - the Extradition Act 1965 (Application of Part II) (Amendment) Order 2002. The amendments therein are merely textual and do not affect the application of Part II to the U.S.A..

2.4.5. Pursuant to the provisions of s. 4 of the Documentary Evidence Act 1925, the Attorney General proved the regulations by the production of them to the Court. Thus, the U.S.A. is a country to which Part II of the Act of 1965 applies.

“[w]here a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and accordance with the provisions of this Part, be surrendered to that country.”

2.5.2. Section 23 of the Act of 1965 provides:-

“[a] request for the extradition of any person shall be made in writing and shall be communicated by (a) a diplomatic agent of the requesting country, accredited to the State or (b) any other means provided in the relevant extradition provisions.”

2.5.3. As referred to above, the request was made by the Embassy of the U.S.A. in Dublin to the Minister for Foreign Affairs and Trade. The manner in which the request must be made is set out in the terms of the Washington Treaty and as amended by the 2010 Instrument referred to above. The Explanatory Note at Part B 1(a) provides that Article 5 of the EU/U.S. extradition agreement, as set forth in Article VIII (1) and (7) of the annex to the Instrument (“the integrated Washington Treaty”), shall govern the mode of transmission and requirements concerning certification, authentication or legalisation of the extradition request and supporting documents.

2.5.4. Article VIII(1) of the integrated Washington Treaty provides that the request for extradition shall be made in writing and shall be transmitted with supporting documents through the diplomatic channel which shall include transmission as provided for in para. 8 of this Article. That paragraph relates to the situation where a person is held under provisional arrest by the requested state. The diplomatic note was sent from the embassy of the U.S.A. to the Department of Foreign Affairs and Trade. This is through the diplomatic channel. The diplomatic channel is a means provided in the relevant extradition provisions and thus s. 23 of the Act of 1965 is satisfied.

“(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the procedures laid down in the law of the requesting country;

2.6.2. Pursuant to s. 37(1) of the Act of 1965, a document supporting a request for extradition, and any evidence in writing received, from a requesting county shall be received in evidence without further proof if it purports to:-

2.6.3. Article VIII(7) of the integrated Washington Treaty provides:-

“[d]ocuments that bear the certificate or seal of the Department of Justice, or Department responsible for foreign affairs, of the Requesting State shall be admissible in extradition proceedings in the Requested State without further certification, authentication, or other legalisation.”

In the U.S.A., the department of justice means the Department of Justice of the U.S.A.. In Ireland, the relevant department of justice is the Department of Justice and Equality.

2.6.4. In the present case, the original diplomatic note and the original extradition request with the seal of the Department of Justice of the U.S.A. were presented to the Court. The Department of Justice of the U.S.A. performs the same functions under the Act as our Minister for Justice and Equality. The relevant affidavits are witnessed and signed by a judge or magistrate judge of the U.S.A..

2.6.5. Article IX of the integrated Washington Treaty provides for the submissions of extra evidence or information, if required, for the decision on the request for extradition. Such additional evidence or information may be requested and furnished directly between the U.S. Department of Justice and the Department of Justice and Equality in Ireland. Subsequent documentation has been forwarded by the U.S. Department of Justice to the Department of Justice and Equality.

2.6.6. The request for extradition was received through the diplomatic channels and bore the appropriate seals. After the initial request, further documentation was received and placed before the Court as either a document supporting extradition or as evidence in writing. As an example, the affidavit of Ms. Williams of the 18th March, 2013, is put forward in support of the request for extradition and it is signed and sworn before a U.S. Magistrate Judge. However, there is no immediately apparent indication that it was certified by the seal of the U.S. Department of Justice. Similarly, the Supplementary booklet contains a document sent by e-mail from the U.S. Department of Justice to our Department. The supplemental affidavit was sent by covering letter from the U.S. Department of Justice. In relation to the replying affidavits, the Court was provided with a letter from the Department of Justice and Equality which stated that the original affidavits were forwarded by the U.S. Department of Justice.

2.6.7. On none of the above documents is there evidence of a seal. They are certainly on headed notepaper but a seal has in ordinary meaning a connotation of some material attached to a document as a guarantee of authenticity or, at the very least, a design resembling a seal embossed on it as a similar guarantee of authenticity. This was not a matter raised on behalf of Mr. Damache, although he put the State on proof of all matters. Therefore, there was no argument on this aspect of the case.

2.6.8. In light of the findings I proceed to make in this judgment, it is perhaps best not to make a definitive ruling on this particular issue pending a more considered hearing. It is quite possible that there is authority that would permit the use of documents or evidence forwarded in these circumstances or that on a proper construction, headed notepaper in combination with a signature amounts to a seal. Indeed, the term signed, sealed and delivered appears often to be used to permit individuals to execute documents without any formal requirements to append an actual seal. Moreover, with reference to s. 29(2)(c) of the Act of 1965, it may well be possible to regard this as a technical failure to comply with a provision of the Act which does not impinge on the merits of the request for extradition and which does not cause an injustice. In all the circumstances, I will proceed as if the documents can be considered under the terms of section 37(1).

Warrant of Arrest

2.6.9. Details of the charges are contained in the affidavit in support of the request for extradition of Mr. Damache sworn by Ms. Jennifer Arbittier Williams on the 7th December, 2012. Ms. Williams is an Assistant U.S. Attorney for the Eastern District of Pennsylvania and is familiar with the charges and evidence in the case against Mr. Damache. Her affidavit also exhibits the superseding indictment. That superseding indictment forms the basis for the domestic U.S. warrant in this case.

2.6.10. The superseding indictment was returned in circumstances where a grand jury sitting in the Eastern District of Pennsylvania had already returned an indictment against Mr. Damache alleging that he conspired to provide material support to terrorists and that he participated in the attempted theft of U.S. identity documents to facilitate an act of international terrorism. U.S. federal law permits a grand jury to return a superseding indictment if additional evidence is presented to a grand jury as to a defendant against whom an indictment has already been returned. On the 20th October, 2011, a grand jury sitting in the Eastern District of Pennsylvania returned a superseding indictment against Mr. Damache that added another man, Mohammad Hassan Khalid (“Mr. Khalid”), as a co-conspirator. The charges against Mr. Damache in the superseding indictment were identical to those in the earlier indictment.

2.6.11. On the 28th July, 2011, a deputy clerk of the U.S. District Court for the Eastern District of Pennsylvania signed an arrest warrant for “Ali Charaf Damache aka ‘the black flag’” pursuant to r. 9 of the Federal Rules of Criminal Procedure which are exhibited in the affidavit of Ms. Williams. The clerk of a court is the authority competent to sign arrest warrants and deliver them for execution to law enforcement authorities competent to make arrests. The clerk of the court signed the arrest warrant. A further arrest warrant did not issue after the superseding indictment was returned by the grand jury. Ms. Williams averred that this is not necessary after a superseding indictment although an arrest warrant may issue.

2.6.12. On 27th February, 2012, Mr. Mark Ciamaichelo, the deputy clerk of the U.S. District Court for the Eastern District of Pennsylvania, issued a new arrest warrant for Mr. Damache on behalf of the clerk of the court. Ms. Williams deals with two aspects of this in her affidavit. In the first place, she says that the function to sign and deliver arrest warrants also resides in and is appropriately, customarily and lawfully exercised by deputy clerks of the court. She averred that in nearly every case in the district, a deputy clerk, and not the appointed clerk, signs and delivers arrest warrants. Thus, it is said that Mr. Ciamaichelo is the appropriate person to sign the arrest warrant.

2.6.13. According to Ms. Williams, the reason for the renewed warrant was that it was apparently the practice of the U.S. District Court for the Eastern District of Pennsylvania not to release original arrest warrants or provide certified copies of unexecuted arrest warrants. Therefore, the original warrant issued on 28th July, 2011, or a certified copy thereof could not be attained for purposes of this request. In order to satisfy the requirements of the Washington Treaty with the approval of the U.S. District Court for the Eastern District of Pennsylvania, the office of the clerk of the court issued the new arrest warrant dated 27th February, 2012. The arrest warrant replaces the arrest warrant issued on 28th July, 2011, and remains valid and executable against Mr. Damache for the charges set forth in the superseding indictment.

2.6.14. I am satisfied on the basis of the foregoing that in accordance with the terms of s. 25(1)(a), the request for extradition has been supported by the original warrant of arrest issued in accordance with the procedure laid down in the law of the requesting country.

Statement of Offence and Other Required Documents

2.6.15. Section 25(1)(b) and s. 25(1)(e) shall be dealt with together below.

2.6.16. In relation to this matter, the U.S.A. has forwarded copies of the relevant enactments of their law. Through various affidavits, Ms. Williams has provided a statement of the law where this has been judge-made. In particular, she has set out the proofs required in relation to each offence by the law of the U.S.A. with particular reference, but not limited to, the offence of conspiracy. I am satisfied that there has been compliance with s. 25(1)(c).

2.6.17. In relation to identity, the U.S. authorities have given as accurate a description as possible of the person claimed. I was informed at the outset that identity in this case was not at issue. I am satisfied there has been compliance with s. 25(1)(d).

2.6.18. Thus, subject to ss. 25(1)(b) and (e) dealt with further below, I am satisfied that the request has been made in accordance with the provisions of the Act of 1965.